Mendocino County medpot ruling may set new precedent

In what could be a significant ruling for medical marijuana defense, a Mendocino County Superior Court judge on Friday granted a motion to throw out evidence from a vehicle search done because the driver admitted to having the drug and a county-issued card identifying him as a medical marijuana patient.

Judge Ann Moorman ruled in favor of Mendocino County Deputy Public Defender Eric Rennert's motion to suppress the evidence used to charge his client, Kevin R. Hawkins, 55, of Cloverdale, with possessing methamphetamine when a Ukiah Police Department officer pulled Hawkins over on South State Street and searched his vehicle.

The officer had no reason to believe the search would turn up evidence of a crime, so proper grounds hadn't been established for the search, Moorman ruled.

"The question is, does admission of the presence of marijuana alone, with a valid recommendation, provide law enforcement with probable cause to search," Rennert said.

The ruling is significant, he said, because no case law currently exists regarding that question.

Hawkins was pulled over by a UPD officer at 3:50 a.m. April 18 for a traffic violation and produced a valid driver's license, registration and proof of insurance, according to Rennert. While the officer was checking the documents, he asked Hawkins "if he had anything illegal in his vehicle," according to the officer's testimony, quoted in Moorman's ruling.

"The officer testified that he had not seen any contraband or other evidence of illegality to explain the inquiry," according to Moorman's order to grant the defense's motion. "The officer also testified that he did not smell anything such as an odor of marijuana."

The smell of marijuana from inside a vehicle is enough to establish probable cause for a search, Moorman asserts in her ruling, citing a 2007 case where the state Court of Appeal ruled that an officer had probable cause to search a vehicle after smelling the drug, seeing a second bag in the car after the driver showed him one containing a small amount, and believing the driver would drive away after having smoked marijuana.

Hawkins told the officer who stopped him that he had less than an ounce of marijuana in the car with him, and showed him a Proposition 215 card (Compassionate Use Act of 1996) issued by the county of Mendocino.

The officer told Hawkins "that the practice had changed in that the County no longer issued such cards," according to the ruling, to which Hawkins said he got the card in 2000 from the county Department of Public health with his doctor's help.

It had no expiration date because Hawkins obtained it for "a chronic and terminal condition," according to Moorman's order. The court found the card valid.

The officer opted to search the car anyway "because he (Hawkins) told me he had marijuana in the car,'" according to testimony quoted in Moorman's ruling.

"This Court is not suggesting that the presentation of the 215 card was a means of immunization from the search," Moorman wrote. "But, the totality of the circumstances included a voluntary statement coupled with the county issued card AND a complete absence of odor or impaired driving, or evidence of a larger amount of marijuana in the car." (The emphasis is Moorman's.)

The Mendocino County District Attorney's Office has two weeks to appeal the ruling. If an appeal is filed, the case would go before the state Court of Appeals.

Rennert said if that happens, the ruling would be published as case law that can be used as precedent for similar court decisions statewide, becoming the first of its kind.

Tiffany Revelle can be reached at udjtr@ukiahdj.com, on Twitter @TiffanyRevelle or at 468-3523.